CHILD CUSTODY AND VISITATION IN NEW YORK

By: Akanksha A. Panicker

[1.1] WHAT IS CHILD CUSTODY?

The legal responsibility for a child’s care is child custody. This may occur via physical custody (residency) or legal custody. Physical custody provides for where the child will live, while legal custody provides for decision-making power over things like education and health care. 

Legal custody does not necessarily always mean that only one parent has the authority to make decisions about the child. Joint custody is a situation where the two parents and other authorized caregivers (if indicated) of the child share authority amongst each other. These parents must thus communicate with each other enough to keep them informed about the child’s present circumstances and come to decisions together. Sole custody, on the other hand, leaves the non-custodial parent with the right to medical or educational information, but does not guarantee them the right to make decisions. 

Additionally, when referring to physical custody, courts often use the term primary placement to describe where the child usually lives. Visitation of the second parent is often termed secondary placement, and is often accompanied by a visitation schedule that suits both the child and the parent’s time constraints. If the Judge pronounces joint physical custody, the child lives with each parent for an equal amount of time. An Order of Custody on consent is an Order issued by the presiding judge in New York Family Court that typically establishes a custody and visitation arrangement that has been agreed to by the parties.

[1.2] INFLUENCES ON GRANTING OF CUSTODY

The preferences of a child will not be automatically taken into consideration, though a court is more likely to consider the wishes of an older child than a younger one. Children are highly influential, and this is done to ensure one family member does not influence the child in the case. 

The ‘totality of circumstances’ is something that a court must also take into account. Usually one factor isn’t determinative of the best interests of the child or of child custody in New York. If, however, the child has been living with one parent for a long time and is thriving, a court will be reluctant to disturb the status quo.

New York has custody agreements, which are now referred to as parenting plans as well. A New York court can make orders about the child’s custody only until the child is 18 years old. The Court gives custody based on what is best for the child; this is called the best interest of the child. If there is no court order, then both parents have equal rights to physical and legal custody of the child.

[2.1] HOW IS CUSTODY GRANTED?

Custody may be asked for a child primarily by the mother or the legal father [a man who has signed an Acknowledgement of Paternity or received an Order of Filiation from the court or is listed as the father on the child’s birth certificate.]  However, the presumption of the spouse of the child’s birth mother being the child’s parent holds true, especially in cases of conception through in vitro fertilization or artificial insemination. Recent precedents allow for the domestic partner of the child’s birth or adoptive parent establishing parental rights even if they are not married to them, 

It cannot be said that there’s a default right to custody for either parent. Sans a custody order, neither parent can keep the child, and relatives and friends can ask the court for custody. This only occurs in extraordinary circumstances including situations such as surrender by the parent, abandonment, persistent neglect, unfitness, or disruption of custody over an extended period of time. If they can show extraordinary circumstances, then they must also prove that it is in the best interest of the child for the non-parent to have custody.

Visitation, however, can be asked for either parent, siblings and half-siblings, and grandparents.  It needs to be determined whether visitation is in the child’s best interests, though a parent is entitled to potent and frequent visitation. In addition to this, the custodian or parent cannot stop visitation if the other parent does not pay child support.  Instead, he/she can file a child support violation petition to require payment.

[3.1] NEW YORK CUSTODY LAWS AND BEST INTERESTS OF THE CHILD

Under New York law, the best interests of the child is the most important factor in considering which parent gets physical custody and whether a situation warrants granting sole custody. A balance of each parent’s ability to satisfy their child’s needs must be achieved in order to fulfil the test of the ‘best interests of the child.’ 

There does not exist a single tipping factor for this best interest, instead achieving the same through an accruing of all relevant factors.  A judge may also order an investigation from a social services agency such as Child Protective Services (CPS) or Administration for Children’s Services (ACS), and the judge can consider the report generated by that agency.

Stability is often seen as a primary factor for the best interest of the child. This often leads to relying on the parent who was first awarded custody by the court or by voluntary agreement. This reduces the shock on the child, and allows them to flourish in an environment they already are familiar with. The idea of the primary caretaker is often an advantage in this deliberation, as priority in custody disputes is often given to the parent who acted as the primary caretaker before the divorce or separation as well. This, however, may be changed if both parents are working. Better child care arrangements are preferred, as they benefit the child in their development. 

Substance abuse, mental illnesses [including personality disorders or emotional instability] dramatically reduce the likelihood of that parent receiving Severe physical illness/disability that greatly affects one parent’s ability to care for the child may affect a custody award, with the parent suffering from such a condition being less likely to receive custody. 

The best interests of the child require them to be taken care of to the best of their parents’ ability. Domestic abuse, including spousal abuse, influences a spousal award, as will evidence that one parent abused, neglected or abandoned the child will affect custody, with the parent who committed such acts against the child being less likely to receive custody. In fact, domestic abuse if one of the few factors that thee judge absolutely must consider. Indeed, these actions almost automatically disqualify that parent from receiving custody of the child. 

Conditions in the home environment must also be taken into account. A court would not want to place a child in a dangerous or an unhealthy household, especially with a parenting style that might be absent or negligent. This reasoning would also require the courts to consider which parent can provide financially for the child, as   holistic development would require better educational opportunities and comfortable housing, influenced by the fiscal situation of each parent

Ultimately, the courts will consider the parents’ behavior in court, and are more likely to give custody to the parent who will encourage the child to build a relationship with the other parent. The courts may consider a parent’s physical, mental, and emotional health and ability to financially support the child. But most importantly is whether the parent’s parenting skills match the emotional and physical needs of the child. It’s necessary to understand where the child is more likely to be distressed, and identify the better option for the child’s well-being in order to come to a decision.  The child can state his/her preference through the Attorney for the Child, through which the court will examine why exactly the child has this preference towards one parent. Older children have greater weight given to their preference, but until the child is 18, the court makes the final decision regarding where the child lives. 

[4.1] CHANGE IN CUSTODY OF THE CHILD

After the award of custody, either parent is still allowed to change these terms. Custody or visitation may be modified by a petition to change the same.. The parent must prove that there was a significant change of circumstances since the last order, and a change in custody would adhere to the child’s best interests. The test of substantial change is used to preserve erstwhile stability as the court is reluctant to  change primary residence without an actual significant cause .It’s up to the court to decide what facts constitute a substantial change in circumstance.

Some examples of facts that do warrant a change in the custody order include intent to move to another location like a relocation of residency, emotional abuse or physical abuse, if one party is consistently violating the custody arrangement, a significant change in financial circumstances, and a decline in a parent’s health. Additionally, a parent can file for a warrant to remove the child from the other’s residence is there’s a chance of imminent harm to the child. The court is bound to hear this petition the very next day. 

If one parent is in violation of the custody and visitation order, and refuses the return the child, police assistance may be granted. In serious circumstances, the parent’s arrest may be demanded. Additionally, a violation petition in Family Court may be filed in order to enforce relevant provisions about the custody. 

On the other hand, a parent who refuses to visit their child cannot be forced to do so by the court. Visitation rights may be curtailed until they consistently visit the child, but they cannot be compelled to do the same. 

The best chance of achieving one’s goals in terms of obtaining custody is to communicate with the co-parent and keep all communications and negotiations civil. Support the rights and the relationship of the other parent. Favor is more likely to be gained with the court by being cooperative and understanding of court orders.

For information on serving family court documents (i.e., child custody, visitation, child support, paternity, orders of protection and divorce papers visit https://undisputedlegal.com/family-court-process-service/ or call (800) 774-6922 representatives are available Monday-Friday 8am-8pm. call now!

Sources

1. NY Dom. Rel. §240(1)

2. Church v. Church, 656 N.Y.S.2d 416 (3rd Dept 1997)

3. NY Dom Rel Law § 240(1)(a)

4. NY Dom Rel L § 77-J (2012)

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